Clement v. Orr

• Court: Georgia Court of Appeals
• Writing for the Court: HILL
• Citation: Clement v. Orr, 4 Ga.App. 117, 60 S.E. 1017 (Ga. App. 1908)
• Decision Date: 30 March 1908
• Docket Number: (No. 850.)
• Parties: CLEMENT . v. ORR et al.

60 S.E. 1017

4 Ga.App. 117

CLEMENT .

v.ORR et al.

(No. 850.)

Court of Appeals of Georgia.

March 30, 1908.

Malicious Prosecution—Evidence—Levy of Distress Warrant—Petition.

A suit to recover damages for the malicious use of legal process in suing out and levying a distress warrant cannot be maintained without proof of malice and want of probable cause; and it is essential that the petition to recover damages in such case should allege that the distress warrant proceedings had terminated in favor of the defendant therein before his action for damages was filed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, §§ 98, 99.]

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by H. C. Clement against S. A. Orr and others. Judgment for defendants. Plaintiff brings error. Affirmed.

Edgar Latham, for plaintiff in error.

C. B. Reynolds, for defendants in error.

HILL, C. J. Clement brought suit to recover damages from the defendants, Orr and others, for malicious use of civil process. The allegations of his petition are substantially that he was a tenant of the defendant Orr, renting a house from him by the month, the rent payable in advance; that the defendant Thrower acted as agent for the defendant Orr in renting the house to him; that, before the rent was due, Thrower, as agent for Orr, had an employe in his office, defendant Whitten, to sue out a dispossessory warrant for the premises, and a distress warrant for the rent of the premises, and that these warrants were executed by Lancaster, a constable of the justice of the peace who issued the warrants. It is alleged that these warrants were executed at 6 o'clock p. m., when the defendants knew that the plaintiff would be absent from home, and that the seizure thereunder was made on certain personal property contained in the house, and the property taken by the levying officer to the justice court from which the distress warrant issued; that the plaintiff's wife and two small children were alone at the house at the time, and were greatly frightened by such seizure, and that the plaintiff himself, who was living in a populous part of the city of Atlanta, was greatly humiliated by the seizure and removal of his property. It is further alleged that these acts were in furtherance of a conspiracy in which all of the defendants had entered to humiliate the plaintiff, and that this possessory warrant and the distress warrant had both been instituted maliciously and without probable cause. Suit is brought for actual damages, being the amount of expenses incurred by the plaintiff in paying a lawyer to resist the civil proceedings and damage to his personal property by the seizure and removal thereof—these two items alleged to be $50, also punitive and vindictive damages in the sum of $5,000. A general and a special demurrer were filed to the petition, and the court sustained the former and dismissed the petition, and on this judgment error is assigned.

The controlling question in the case is whether the suit for damages is based on a malicious use of civil process or a malicious abuse of civil process. If the suit was a malicious use of civil process, it is well settled that the plaintiff must allege three things: First, that the suit against him was malicious; second, that it was without probable cause; and, third, that it had terminated in his favor before the suit for damages was filed. If, however, the suit is for malicious abuse of civil process, these allegations are not necessary. Newell, in his work on Malicious Prosecution, gives the following distinction between the malicious use •and the malicious abuse of legal process: "An abuse of legal process is where the party employs it for some unlawful object, not for the purpose which it is intended by law to effect; in other words, it is a perversion of it. For example, if a man is arrested, or his property seized, in order to extort money from him, even though it be to pay a just claim, other than that in suit, or to compel him to give up possession of a deed or anything of value not the legal object of...